On November 3, 2020, Election Day, New York Attorney General Letitia James issued a press release addressing suspicious robocalls received by New York residents in the run up to the election. According to Attorney General James, many New Yorkers received automated calls “spreading disinformation and encouraging people to stay home on election day.” If true, these calls would violate numerous laws meant to protect free and fair elections. While such calls clearly run afoul of applicable robocall law, it is important to remember that other automated calls do not need to be so nefarious to violate of state and federal telemarketing laws.
What is Robocalling?
Robocalls and the TCPA
The election-related calls made to New York state residents warned voters to “stay at home” on election day. Attorney General James will investigate the calls to determine their source. Of course, ensuring that legitimate calls and text messages comply with the applicable robocall laws takes significant work. A number of state and federal laws regulate automated telephone calls. One of the critically important laws in this space is the Telephone Consumer Protection Act, 47 U.S.C. §227, et seq. (“TCPA”). The TCPA prohibits making calls or sending text messages (other than calls made for emergency purposes or made with the prior express written consent of the called party) using any automatic telephone dialing system (”ATDS”) or an artificial or prerecorded voice to a cellular telephone. An ATDS is defined as equipment that has the capacity to “A) store or produce telephone numbers to be called, using a random or sequential number generator; and B) to dial such telephone numbers.”
Robocall Law Compliance
Businesses and telemarketers that fail to comply with the TCPA and other applicable state and federal laws (including the Amended Telemarketing Sales Rule) can face significant penalties. Under the TCPA, individuals may sue for damages ranging from $500 to $1,500 per telephone call or text message sent in violation of the statute. As we have reported, TCPA class actions may involve thousands of texts or calls, and may therefore, result in multi-million dollar settlements and judgments.
To protect your business, complying with all applicable robocall laws, including the TCPA, is critical. Businesses with robust compliance programs may be able to help stem the tide of TCPA lawsuits and regulatory enforcement actions. For example, before commencing any telemarketing campaign, businesses need to understand not only how to obtain “prior express written consent” within the meaning of the TCPA, but also how to maintain proof that consumers consented to be contacted via automated means. In addition, sellers need to work closely with their telemarketing partners to ensure that calls being made on their behalf comply with all relevant robocall laws. The laws and regulations surrounding telemarketing are constantly changing. Accordingly, businesses should protect themselves by working with experienced telemarketing law counsel. If you are the subject of a TCPA action or need to review your telemarketing compliance practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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